Ontario Court Grapples With Legalities of Anonymous Online Postings

The Internet has given rise to thousands of online chat forums, where participants can sound off on the issues of the day often shielded by the cloak of anonymity. Anonymous speech can be empowering – whistleblowers depend upon it to safeguard their identity and political participants in some countries face severe repercussions if they speak out publicly – but it also carries the danger of posts that cross the line into defamation without appropriate accountability.

My weekly technology law column (Toronto Star version, homepage version) notes that striking the balance between protecting anonymous free speech on the one hand and applying defamation laws on the other sits at the heart of a new Ontario Superior Court decision released last week. The case involved postings about Phyllis Morris, the former mayor of Aurora.

In 2010, the website featured an online chat forum where participants discussed a local election campaign. Morris, who was defeated in the election, launched a legal action during the campaign against the site, the chat forum moderators, its lawyers, and website host to order them to disclose the identity of three anonymous posters.  Morris did not identify the specific defamatory words, but claimed that six posts were defamatory.

The court was therefore not asked to determine whether the posts at issue were in fact defamatory. Rather, it simply faced the question of whether it should order the disclosure of personal information about the posters themselves so that Morris could proceed with a defamation lawsuit.

The court rightly identified the core question as balancing “the competing interests of privacy, the public interest in promoting the administration of justice by providing the Plaintiff with the information sought to pursue her claim and the underlying values of freedom of expression and political speech.” Moreover, the court emphasized that the posts involved political speech, which is particularly deserving of protection.

In sorting out the balance, the court relied on a legal test established in 2010 Ontario defamation case that similarly involved anonymous online postings. That case identified four factors to consider: (1) Whether there was a reasonable expectation of anonymity; (2) Whether the plaintiff established a prima facie case of wrongdoing by the poster; (3) Whether the plaintiff tried to identify the poster and was unable to do so; and (4) Whether the public interest favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

In this particular instance, the court sided with the posters and refused to order the disclosure of their identities. Since the plaintiff (who has since indicated she plans to appeal) did not identify the specific defamatory words, she failed to establish a prima facie case of defamation. Moreover, the court also ruled that the posters had a reasonable expectation of anonymity and that there were insufficient efforts to try to identify them.

The case solidifies the emerging test for identifying anonymous posters on the Internet, establishing a balance that sends a message that anonymous speech is worthy of protection, but that the law will not support hiding your identity with the intent to defame.

Given the court’s careful analysis of the speech and privacy issues, the case also provides a reminder of the value of court oversight before ordering the disclosure of personal information. This may be in jeopardy since the government is currently contemplating lawful access legislation that require such disclosures without court oversight, tilting the balance away from privacy and creating a potential chill for those speaking out online.


  1. Un-Trusted Computing says:

    Anonymous should continue to be the internet standard
    I’d have to suggest the court weigh in in favor of anonymity it keeps citizens feeling safe and comfortable to express themselves on the internet, and that’s the most important concern here.

    If anonymity stops then these discussion boards could simply move offshore, or more computer savvy citizens will use stronger means to protect their identity.

  2. Inconsistency
    It shocks me that we actually have a subtle, balance test to apply in civil cases–and yet in criminal cases, judges are willing to throw all these privacy concenrs out the window on the flimsiest of legal arguments.

  3. I just can’t believe politics in Aurora could be so petty as to involve the need for anonymity when engaging in political discussion. Who would be so scared of retribution from the mayor of Aurora that he would hide behind a pseudonym?

  4. Well John, the existence of this lawsuit demonstrates that fear of retribution is justified. You should come back to town more often and see. The political fighting between various councilors is worse than the fighting between Republicans and Democrats in the States. I had hoped we’d get past this after the last election, but alas, the circus continues at town hall…. I still hold onto faint hope though.

  5. Un-Trusted Computing says:

    Degen the standard for most online discussion via pseudonym, although there are forces at work trying to change that, it certainly won’t happen without a great deal of resistance… if it happens at all. I predict if the issue gains any traction there will probably be two camps, one that’s always “anonymous” and the other that’s always using “real names”.

    As Darryl just stated with the present lawsuit in progress, the case for anonymity is already established. For what it’s worth, I think whenever a power struggle or something that would upset the established order, anonymity will be used (and abused) by various factions trying to gain an advantage.

    I don’t think that forcing anonymity under ground by making it more legally challenging to stay anonymous is going to advance anyone’s cause.

  6. Devil's Advocate says:

    Another slippery slope in the making…
    This is a dangerous scenario they’re building for us.

    1) “…but that the law will not support hiding your identity with the intent to defame.”

    Who gets to determine what constititutes defamation or even where such intention exists??

    Who gets to decide when it may somehow be appropriate to circumvent someone’s right to anonymity, in order have a court of law basically explore the theory that a crime has been committed??

    Is this idea intended to be a 1-sided affair, where a right is being arbitrarily discarded, without recourse/redress/compensation for the wrongly accused?

    2) “…the government is currently contemplating lawful access legislation that require such disclosures without court oversight…”

    Are we seeing an intentional dismantling of the Charter of Rights in progress??

    It’s not difficult to imagine the abuse we’d be letting ourselves in for, should we stay complacent on it.

  7. Anonymity is at the basis of Democracy by the very principle of the free vote that is the only power citizens enjoy.

    Conversely, those who post without giving out their real names pass on information and speak out on issues in a free but selfless manner, which empowers people and ideas instead of individuals.

    For this reason, anonymity should be protected at all costs.

    For the case at hand, it should be obvious that Ad Hominem attacks proffered without any basis on fact only discredit those who proofer them, and those who take the bait.

  8. It’s fools gold
    There is no way to be sure an identity is not spoofed. Mandatory identification online is simply not possible to implement perfectly and if it’s not perfect it won’t work.

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  11. Anonymous (the outlaw) says:

    Outlaw anonymity and only outlaws will be anonymous.
    Will the millions of us who have our own websites ALL be required to log everything?

    What of the millions of us who leave our wi-fi open, because it is the only way to serve our kindles, ipods and boxees?

    What of the 7 million kids who have fake facebook accounts, right now the most popular means of IDing someone online?

    These, and so many more issues, simply DO NOT MAKE SENSE!! The outlawing of anonymity is a tax dollar sinkhole like none before. It would make more sense to invade China.

  12. PrometheeFeu says:

    Pseudonymous speech considered less reliable
    I would like to see a study on the effect that pseudonymity has on how believable speech is. I would theorize that when the speaker is anonymous or pseudonymous, what they say is given less weight. As a result, it would make sense that defamation by anonymous or preudonymous parties would be less damaging and perhaps not even be prosecutable if the credibility of the speaker is low enough.

  13. The public should have every right to weigh in on matters of public importance.
    Public officials using public funds to sue the public for their personal gain is a chilling thought… in more than one respect. Freedom of expression in democratic debates needs to be protected. If Jack Layton can call the members of the Senate “criminals” in a nationally televised public debate and if the discussion in the House of Commons and in Council Chambers across the country is protected against the threat of defamation in the course of doing the business of government, then the public should have every right to use strong language to describe those that they feel deserve it, without the threat of politically motivated attacks from those that they elect.

    Quote from the Parliament of Canada Website:
    “By far, the most important right accorded to Members of the House is the exercise of freedom of speech in parliamentary proceedings. It has been described as:
    […] a fundamental right without which they would be hampered in the performance of their duties. It permits them to speak in the House without inhibition, to refer to any matter or express any opinion as they see fit, to say what they feel needs to be said in the furtherance of the national interest and the aspirations of their constituents.[144]”

    Public input is the very foundation of democracy… even if some elected officials don’t like what they hear.

  14. Do we really want a democratic double standard ?
    Further to my comment above… elected officials are protected against the threat of slander and defamation while they are in the House of Commons, Legislature or Municipal Chambers, as the case may be… so why should the public not be granted the same rights when discussing the same issues ?

    Given that governments are not legally permitted to sue their constituents, how then can a government justify paying for a lawsuit brought forward by an elected official ?

    Double standards and loopholes don’t strike me as serving the greater good.

  15. Given the standard of anonymous comments on the Internet, it’s very easy to imagine this politician found the comments aimed at her to be truly offensive, slanderous and damaging to her campaign. I can understand her feeling they represent a cowardly attack from hiding, which I think we can all agree is a reprehensible way to engage in political discourse, or any kind of discourse.

    I think the court made the right decision, though, because one of the subtler points of freedom of expression is that it protects – and should protect – even the speech of those we despise, and there should be a strong standard in place. I think it’s possible to imagine that these anonymous commenters in Aurora are truly awful people with nothing to contribute other than their bile AND to expect their speech to be protected as long as the courts find no actionable slander.

  16. @Degen
    That was a good point. Unfortunately there are many that comment anonymously and simply hurl bile at the subject of their rant, without offering anything approaching objective reasons for their statements. They simply vent. It does occur on this blog, but to no-where near the same extent that I see at the websites for various newspapers.

    What some seem to forget is that all speech needs to be protected; the speech of those that we agree with, but even more so the speech of those we don’t. Having said that, there is a place for slander and libel laws; we also have the right to the presumption of innocence and the nature of our court system places the onus upon the accuser to prove the guilt of the accused. The libel and slander laws, which provide this at the civil level, need to balance the right of free speech with the rights of the person being accused. Do we have an appropriate balance? I don’t know. I do think, however, that without providing examples of what she found offensive Ms Morris opened up the possibility of a fishing trip and therefore the courts did properly toss out the application.

  17. Robert Smits says:

    Why shouldn’t we hold people accountable for what they say?
    Why shouldn’t we hold people accountable for what they say? In a great many on-line forums, people are rude and disrespectful precisely because they’re anonymous and wouldn’t act that way if they had to use their real names.

    How do you balance that with the real need to be able to post anonymously on occasion?

  18. Un-Trusted Computing says:

    @Robert Smits
    Re: Why shouldn’t we hold people accountable for what they say?

    Although you could consider anonymous speech to lack “backing” or “expertise” because in a way it’s like graffiti on a bathroom stall, but its disrespect isn’t really something overly concerning. If the mayor of Aurora can’t deal with some online slander how is she supposed to stand up for her constituents when real trouble comes in the form of exploitative corporations and sleazy backroom deals amongst her peers?

    This lawsuit bears a lot of similarities with SLAPP at worst and I’d also argue she’s abusing the legal system in order to stifle criticism.

  19. A long time ago I learned to pay attention to the message, and not the name. Anonymous or pseudonym postings are judged on the content of their message, just as the (possibly fake) real name postings.

    I also learned a hash lesson about using real and traceable names. It only takes a few “bad eggs” to track you down and accost you in a back alley or vandalize your home. Worse is that it wasn’t me that got hurt, but a family member.

    If you feel that anonymous postings shouldn’t be allowed, just ask yourself how you would feel if you “outed” someone, that then ended up in the hospital or worse. It could even be you, or one of your family. Or someone “impersonating” another on the net.

    There are a lot of very good reasons for wanting to remain anonymous on the net. Unfortunately there are a lot of bad reasons as well.
    My personal opinion is that it is much like the “innocent until proven guilty” approach, where we will let 100 accused go free if the evidence doesn’t support a verdict of guilty, on the chance that 1 of those 100 is actually innocent. We take the bad with the good.

    The system isn’t perfect, but it is the best we can do. The onus is on the reader to judge, based on the quality of the message and opposing messages. Not the name attached to the message.

    In the case above, it could just as easily have been an ad taken out in the local paper, paid in cash, with a fake name/number. Internet postings are easier and cheaper. They are also easier to refute in the same fashion.

    Ignore the name(s), pay attention to the message.

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  21. Just curious says:

    So, would the answers be any different if the anonymous comments suggested that a well-known blogger used his academic job to sexually exploit students in return for higher grades?

  22. would the answers be any different
    Not as far as I am concerned. It’s the quality of the message that counts, not the simple accusation. An accusation is meaningless without evidence.

    But if the “quality” of the message is high, IE: has specifics or other indications that it isn’t someone making simple or baseless accusations, then it carries more weight. Conversely, the higher the “quality” of the message, the easier it is to refute.

    If I read such an accusation from an anonymous poster, I would simply recommend they take it to authorities, where anonymity isn’t allowed but identity *can* be protected. It isn’t perfect, but nothing with similar weight of identity protection exists on the internet.

    User interactive conversations on the internet isn’t just scholarly discourse or journalistic, nor is it simple gossip. It contains elements of all of that, and more. The reader has a responsibility to be somewhat discerning. Someone that gets upset at obviously baseless accusations has a pretty low opinion of the readers. And the Streisand effect kicks in.

  23. Your impressions of Canadian libel law are sadly mistaken
    … the libel and slander laws, which provide this at the civil level, need to balance the right of free speech with the rights of the person being accused. Do we have an appropriate balance? I don’t know.

    Degen, I’m not a lawyer, only a layman. That said, my understanding is that the libel laws in Canada are based on those in England. I would like to quote from an October 27th, 2006 commentary written by Dan Burnett in Lawyer’s Weekly: “COMMENTARY: Canada should reform its antiquated libel laws”

    Dan Burnett is one of Canada’s foremost authorities on libel law. In that article, he said:

    Why do plaintiffs outside Canada bring libel suits against non-Canadian defendants such as the New York Post and the Washington Post in our courts? The answer is that they likely have good legal advisers who correctly tell them that Canadian libel laws favour plaintiffs. For all the lofty quotes
    about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.


    In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3).

    While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.


    For those who prefer British and Commonwealth role models, it is noteworthy that in the past dozen years or so, the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada.


  24. anonymous layman,

    I didn’t write that sentence about Canadian libel laws. Anon-K did. I’m well aware how libel laws in Canada can and have been used to chill free speech.

    Just curious,

    I have no answer to your question. The damage that can be done to a career through false, malicious, anonymous accusation is very real, I think. I don’t think such an accusation can ever be as meaningless as oldguy suggests. Rumour is a pernicious force.

    On the other hand, the damage that can be done to an individual through the imbalance of power in your suggested scenario is just as horrible. Anonymity may provide a necessary feeling of safety for a true accusation to be brought forward.

    Interesting. I’d like to hear more.

  25. Devil's Advocate says:

    And what about the inverse question attached to all this?…
    I keep seeing comments that suggest anonymity is mostly a tool to enable rudeness, insults and unabashed slander/libel.

    To those people, I ask, are you suggesting that the quality (or even the reliability!) of the comment from an “identifiable poster” is not often an issue as well?

    Considering all the propaganda, misinformation and spin published by many well-known entities with their names right on it, I’d say insulting bantry is not exactly the most concerning of our online problems.

  26. Rumour is a pernicious force.
    John, I agree with you on this statement. But it isn’t because of the “internet” that this is true, it’s the nature of people.
    The internet tends to magnify various effects, including the effects of rumors. It also magnifies the effects of any responses to such.

    Your statement has been valid down through the ages. This is nothing inherently new. The listener/reader has always had a responsibility to be discerning about the message. This responsibility has become more and more important with the advent of the postal system, telephone system, radio and TV, the BBS world, and now the internet.

    For a very recent example, compare this “hoax/rumor/PR stunt” with a simple check on it’s “quality”. A lot of journalists got caught repeating the headline information without a simple validity cross-check.

    Conversely, there are some readers that caught this quite quickly. Review the discussion at:

    Note that anonymity wasn’t required to pull this off. Nor was “identity” required to expose it. The reader has a responsibility to be discerning.

    Here is a classic, that I often use as an example for people when admonishing them to do a little cross checking or verification:

    Bottom line, the effects of anonymity on the internet isn’t something new. It isn’t something we can, or should, attempt to resolve in the legal system. Indeed, to attempt to do so has a potential chilling effect that could be disastrous. It’s an issue of society.

  27. Anonymous, what you quoted demonstrates why I wrote “Do we have an appropriate balance? I don’t know”.

    @Degen. Conversely, damage can be done using the commentary section of blogs such as this one to falsely attribute comments to someone else. For instance, how difficult would it be for me to write a comment here as you, or “oldguy”, or “Untrusted Computing”, etc.

    @Devil’s Advocate: I appreciate what you are saying… my personal view is that anonymity does not so much encourage bad behaviour as it means that people are more likely to engage in it if they thing it won’t come back to bite them in the butt. I’d agree that in many ways the insults, etc, are not the worst problems… Often I too see “truthiness” (to use Stephen Colbert’s term) published on the internet, in some cases the misrepresentation may in fact be intentional to skew public opinion. For instance, one that I often see is the myth that 80% of Canadians live in cities. In fact, according to StatsCan 80% of Canadians live in “urban” areas. Those wanting to skew it paraphrase “urban” as “city” (I’ve seen this done in the national media on CBC News), when in fact it really means (simplistically) cities and towns. If you consider a city to be a municipality of more than 100,000 people, then only about 50% of the population resides in the cities. This misrepresentation occurs from across the political spectrum, not just from the right or the left.

  28. Remaining anonymous on the internet is just common sense. Show yourself and get spammed to death by marketting and fraudulent lawsuits.

  29. Patent Attorney says:

    A Survey Out Of New York Found That The Majority Of American Adults Believe Online Behavior Is Uncivil.
    Online users are concerned with anonymous comments. A survey out of New York said that the majority of American adults think that the way people behave online is uncivil.
    There are many loopholes people can use to avoid giving a web site their personal information.

  30. Un-Trusted Computing says:

    @Patent Attorney
    First off this applies to Ontario Law, and would affect Canadians, therefore quoting a US survey wouldn’t be the best tool to gauge how Ontarians feel about the subject.

    Secondly if you’re going to use a survey (however biased it may be) please post a link to so that we can all read the information, and evaluate your findings for ourselves.

  31. nerverness says:

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  32. @crade
    There is a difference between being anonymous and not making your email, etc, available. Lots of news web sites, even some blogs associated with them (for instance, the Ottawa Citizen, Globe and Mail, and Toronto Star all do this) now require that you log into the system in order to post comments. These show only a “handle”; they don’t show your contact info. These sites do filter what gets posted, refusing to post from some people who have violated the rules of the blog, or removing individual postings of people.

    So, to me this comes down to this. Do we expect and are we granted an expectation of privacy when communicating by unencrypted email? Since this is an online activity, a parallel can be drawn with posting comments to a blog as that is also an online activity.

    Now, if we do expect anonymity, what does that do to the legal liability of the blogger? As I understand it they can be held liable for leaving postings which contravene the Criminal Code. Can they also be held potentially liable for defamation, in particular where they leave the statement for some time after knowing it is defamatory?

  33. @Anon-K
    It’s hard for me to be sure, but I suspect you are conflating the issues of privacy and anonymity. They are separate issues, even if they have lots of areas where they touch. Can I suggest you repost to clarify the separation of privacy and anonymity? I suspect you may find your wording, and perhaps your thinking, will change subtly if you make the separation.

    A case can be made for pseudonymous vs truly anonymous, and in most cases this is more than adequate “protection”, as long as there are strong safeguards on the “privacy” of identity. The definition of “strong” is where people differ, but I would suggest that a legal requirement not to release such private information (even under court order) without advising the individual first, is a good place to start. Building in an additional level of allowing the individual to legally challenge the court order before releasing private information is even better.
    This is where things can get sticky, because current laws allow a court to force such private information from the holder, while explicitly restraining the holder from advising that such information has been requested or given out. Even in criminal cases, the blog posting or email is simply the equivalent of evidence left at a scene, and doesn’t empower the police to issue search warrants for all possible and potential witnesses or people passing by. We need the equivalent kinds of restrictions in the online world.
    Until laws catch up with current reality, true anonymity is the only viable option.

    Then there are the more extreme cases, where the anonymity will always be the only viable option. Whistleblowers, political and legal graft information, and others. Where the poster of the information is specifically trying to avoid identification by the legal system. In the past we had journalist “shield laws” that could be used to protect an individual from “the system”. We don’t have anything like that in the online world.

    It’s a tricky area, and until we stop trying to directly apply constructs that only exist in the “physical world” to the “virtual world”, we won’t come up with workable answers. We have to step all the way back to the original concepts and work forward into their application in the online world.

  34. Marc Wigle says:

    For those who feel that anonymity is the answer, feel free to Google my name. The crap that is posted about me, various friends and associates and my two young daughters are from two crackpots who are using various techniques to remain anonymous while they do their handiwork. How would you suggest that I protect my daughters from this filth? The two idiots behind this campaign fixate on a number of innocent people to further their vendettas. Have a look at for more info. This site is maintained by one of the two and he posts most of the offending material himself in the hopes that people will him to read the stories that he concocts. He has been using Google Groups for years to try to attract people to his website. For more information on him, Google his name, Richard Morton Scoville, of San Antonio, Texas.

    Unlike some of the anonymous cowards of the internet, I am posting my real name to this message. For those of you who think being anonymous is alright, you may change your tune if this crap is against you. The police are powerless to do anything and will not investigate.

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